Doctors hold blood sample wearing ppe suit and face mask in hospital.

New Stark Law Waiver Opens Opportunity for Creative Physician Compensation and Benefits

By Carmel Shachar

On March 30, 2020 the Department of Health and Human Services (HHS) announced a partial waiver of some key elements of the Stark Law, a health care fraud and abuse law. The purpose of this waiver is to relax some of the fraud and abuse requirements around physician compensation during the COVID-19 pandemic to allow hospitals and physician groups to think creatively about meeting the needs of an overworked and stressed workforce. It also provides us an opportunity to consider the post-pandemic future of the Stark Law, long thought to be an impediment to innovative payment and delivery models.

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A doctor holding a paper that reads "stay at home"

Ethical Duties of Health Care Providers and the Public in the Time of COVID-19

By Jonathan M. Marron, Louise P. King, and Paul C. McLean

In medical ethics, we often speak of duties, such as the duty one has to patients, to society, to our families, to ourselves. In fact, deontology is a moral theory often cited in medical ethics based primarily on the consideration and application of such duties.

But we typically speak of duties under “normal” circumstances, and normal certainly does not describe the current COVID-19 pandemic. It is unclear whether and how our typical conceptualization of duties – the duty of clinicians, of health care institutions, and of the public – apply under these unprecedented conditions. These questions are being considered in our hospitals, living rooms, the lay press, and on social media.

What follows is an edited version of a Twitter dialogue between surgeon Louise P. King and pediatric oncologist Jonathan Marron, both faculty members at the Harvard Medical School Center for Bioethics. Drs. King and Marron were responding to a tweet by Paul McLean, social media editor at the Center for Bioethics, on his personal account.

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empty hospital bed

Disability and Rationing of Care amid COVID-19

By Katrina N. Jirik, PhD

As health care resources grow increasingly scarce amid the COVID-19 pandemic, states, hospitals, and individuals are forced to make tough decisions about the rationing of care. These decisions are often framed in terms of medical and/or legal criteria. However, many people, especially the physicians who make the difficult decisions, realize they have a huge moral component related to perceptions of the value of an individual’s life.

Various states have triage guidelines in place, which differ somewhat, but primarily reflect a utilitarian goal of saving the most people with the least expenditure of finite resources. This is where the societal issue of the value of the life of a person with a disability comes into play.

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hospital equipment

How Triage During COVID-19 Can be Fair to Patients with Disabilities

By Govind Persad

On March 28, 2020, the Department of Health and Human Services issued guidance regarding the application of antidiscrimination law to triage policies — that is, policies for fairly allocating scarce medical treatments, like ventilators, in the COVID-19 pandemic.

Many news outlets incorrectly portrayed HHS as prohibiting triage guidelines from considering disability. But the guidance is more nuanced.

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Illustration of a diverse group of people and health care workers

Social Justice in COVID-19 Response: The Legal Issues We Have to Talk About

By Scott Burris and Wendy E. Parmet

As the United States attempts to mitigate COVID-19 through social distancing, quarantines and isolation measures, we enter uncharted territory, and face pressing social, epidemiological, and legal questions.

Although the law is not fully settled, extreme measures that shutter businesses and limit social interactions outside of the home are likely constitutional if and when they are reasonably necessary, based on scientific evidence and knowledge, and are the least restrictive means available to stop a significant risk to the public. But adherence to those principles is not the only constitutional issue to consider during this pandemic.

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woman with iv in her hand in hospital. Labor and delivery preparation. Intravenious therapy infusion. shallow depth of field. selective focus

The Ethical Argument Against Allowing Birth Partners in All New York Hospitals

By Louise P. King and Neel Shah

Among pregnant people and those who love them, the past few weeks have been especially confusing and anxiety-provoking.

As the new epicenter of the COVID-19 pandemic, New York City hospitals temporarily restricted pregnant people from having a birth partner present during labor, a move that stoked international outcry and a vocal community response. Following a Change.org petition that rapidly amassed more than 600,000 protesting signatures, Governor Cuomo responded with an executive order, stating via a spokesperson, “[i]n no hospital in New York will a woman be forced to be alone when she gives birth. Not now, not ever.”

Both of us are obstetrician/gynecologists who have dedicated our careers to supporting the reproductive health and rights of those we are entrusted to care for. We are trained in health law policy and bioethics. And while we support the strong show of support for laboring women and their rights, we believe the Governor’s decision to mandate all New York hospitals allow birth partners — irrespective of the local case rate of COVID-19 or hospital capacity to test for infection or protect health care workers — is uninformed and unethical.

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Young male doctor in telehealth concept

Telehealth amid COVID-19: What Health Care Providers Should Know

By Adriana Krasniansky

COVID-19 stands to be a watershed moment for telehealth adoption within the U.S. healthcare system.

In response to the COVID-19 pandemic, the Trump administration and the Centers for Medicare & Medicaid Services (CMS) (part of the Department of Health and Human Services, or HHS) announced expanded Medicare telehealth coverage for over 80 health services, to be delivered over video or audio channels. Additionally, the HHS Office for Civil Rights (OCR) announced it would waive potential Health Insurance Portability and Accountability Act (HIPAA) penalties for good faith use of telehealth during the emergency. Both measures are designed to enable patients to receive a wider range of health care services remotely, reducing clinical congestion and limiting transmission of the virus. 

In the midst of this emergency situation, health care providers can take measures to consider the ethical and legal aspects of tele-practice as they get started. This article is a short primer to help medical professionals understand telehealth in this moment, navigate regulations and technology practice standards, and choose technologies to support quality patient care. Read More

corridor with hospital beds

3 Human Rights Imperatives for Rationing Care in the Time of Coronavirus

By Alicia Ely Yamin and Ole F. Norheim

Scholarly and official statements and publications regarding human rights during the current pandemic have largely reiterated the important lessons learned from HIV/AIDS, Zika and Ebola, such as: engagement with affected communities; combatting stigma and discrimination; ensuring access for the most vulnerable; accounting for gendered effects; and limiting rights restrictions in the name of public health.

But there is a notable silence as to one of the most critical decisions that almost every society will face during the COVID-19 pandemic: rationing scarce health care resources and access to care.

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pill bottle - buprenorphine / naloxone

Protecting the Vulnerable Substance Use Disorder Population During COVID-19

By Brandon George and Nicolas P. Terry

Introduction

Earlier this month, Dr. Nora Volkow, director of the National Institute on Drug Abuse identified those with substance use disorder (SUD) as a particularly vulnerable population during the COVID-19 pandemic. She highlighted the negative effects of opioid or methamphetamine use on respiratory and pulmonary health in addition to the disproportionate number of those with SUD who are homeless or incarcerated.

We detail the additional challenges faced by the SUD population and, specifically, the opioid use disorder (OUD) sub-group at this time, identify positive ameliorative steps taken by federal, state, and local governments, and recommend additional steps.

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hospital equipment, including heart rate monitor and oxygen monitor functioning at bedside.

The Ethical Allocation of Scarce Resources in the US During the COVID-19 Pandemic: The Role of Bioethics

By Beatrice Brown

Critical resources for handling the COVID-19 pandemic, including ventilators and ICU beds, are quickly becoming scarce in the US as the number and density of infections continue to rise. Leading bioethicists have crafted guidelines for the ethical rationing of these scarce resources during the pandemic. On March 16, The Hastings Center published “Ethical Framework for Health Care Institutions and Guidelines for Institutional Ethics Services Responding to the Novel Coronavirus Pandemic,” detailing three ethical duties for health care leaders: 1) duty to plan; 2) duty to safeguard; and 3) duty to guide. The report also contains a compilation of materials on resource and ventilator allocation.

More recently, on March 23, two insightful pieces were published in the New England Journal of Medicine: “The Toughest Triage — Allocating Ventilators in a Pandemic” by Truog, Mitchell, and Daley, and “Fair Allocation of Scarce Medical Resources in the Time of Covid-19” by Emanuel et al. These two pieces complement each other well and lay a crucial foundation for the inevitable resource allocation that clinicians and hospitals will be forced to practice in the coming weeks. As such, here, I summarize the central takeaways from these two articles while understanding their recommendations in tandem, as well as reflect on the importance of bioethics during these times of medical crisis and how the work of this field must adapt to changing circumstances. Read More